Hay v. Bash

• Decision Date: 24 January 1906
• Docket Number: No. 5,516.,5,516.
• Citation: Hay v. Bash, 37 Ind.App. 167, 76 N.E. 644 (Ind. App. 1906)
• Parties: HAY et al. v. BASH.
• Court: Indiana Appellate Court

37 Ind.App. 167

76 N.E. 644

HAY et al.

v.BASH.

No. 5,516.

Appellate Court of Indiana, Division No. 1.

Jan. 24, 1906.

Appeal from Circuit Court, Kosciusko County; E. Haymond, Judge.

Action by Charles A. Bash against James Hay and others. From a judgment for plaintiff, defendants appeal. Reversed.Bertram Shane, for appellants. M. H. Summy, H. V. Lehman, A. G. Wood, and F. E. Bowser, for appellee.

ROBINSON, J.

Appellee recovered a judgment for damages for a personal injury. Overruling a demurrer to the complaint, as well as the motions for a new trial and in arrest of judgment, are assigned as errors.

The complaint avers, in substance: That appellants, under the firm name of Hay & Co., owned and operated a sawmill and were engaged in the manufacture of lumber. That the mill was, on February 16, 1900, operated and managed by one Walburn as the agent of the firm. That in the mill was a large amount of machinery, consisting of engine, boiler, shafting, carriage, pulleys, wheels, belts, ladders, and saws, all of which were used in operating the mill and in the operation of which a large force of men was employed, of which appellee was one. That it was appellee's duty, as an employé of appellants, to operate the machinery used in pulling logs into the mill and do any and all other work about the mill he should see needed to be done. That while the mill was in operation, and while appellee was in the discharge of his duty as an employé, appellants “carelessly and negligently operated said mill and machinery, well knowing the same was unsafe and dangerous in this: That the line shafting was improperly arranged, that the attachment with the engine and saw was direct and dangerous, and that the fly or balance wheel was an old, condemned, cracked, and blemished wheel.” That while the mill was in operation the wheel suddenly broke into a number of pieces, which were thrown with great force in, around, and about the mill. That one piece struck appellee with great force, producing the injuries described. That he was thus injured by the “negligence and carelessness of the defendants in falling to provide proper and safe line shafting, proper and safe attachment between the saw and engine, and a safe, secure, and sound fly or balance wheel.” That appellants well knew of the improperly arranged shafting, the direct and dangerous attachment, and the unsafe, insecure, cracked, and blemished condition of the fly or balance wheel. That appellee had no knowledge whatever, at the time of and prior to the accident, of these conditions.

Appellee's counsel first insist that no question is presented upon the ruling on the demurrer to the complaint, because of appellants' failure to set out in their brief the complaint and the demurrer. There is no merit in this objection to the brief. It gives in substance all the material averments of the complaint, and states where appellants' demurrer to the complaint will be found in the record, that “this demurrer insists that the complaint does not contain facts sufficient to constitute a good cause of action,” and that the demurrer was overruled and exception reserved. It is not necessary to copy into the brief the pleadings, but if the substance is given the requirement of the rule is met. The demurrer is upon the ground that the complaint “does not contain facts sufficient to constitute a good cause of action.” Objection is made to the use of the word “contain,” instead of “state.” If the complaint is bad for want of sufficient facts, it is immaterial whether it be said that it does not state sufficient facts, or that it does not contain sufficient facts. The meaning of the pleader in filing the demurrer is unmistakable. It is sufficient if the demurrer uses language equivalent to that of the statute. The demurrer in question does this. Ross v. Menefee, 125 Ind. 432, 25 N. E. 545;Petty v. Board, etc., 70 Ind. 290;Pace v. 0ppenheim, 12 Ind. 533;Stanley v. Peeples, 13 Ind. 232. The precise question here presented was decided adversely to appellee in Leach v. Adams,...